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D.C. Circuit Court Rules in Favor of ACC Position on Attorney-Client Privilege for In-house Counsel in Whistleblower Case
ACC Commends Court Decision for Recognizing Right to Privilege in Compliance Matters

Posted: Jun 27, 2014

WASHINGTON (June 27, 2014) — The Association of Corporate Counsel (ACC), a global bar association representing more than 33,000 in-house counsel in 85 countries, lauds today's decision from the United States Court of Appeals for the D.C. Circuit in In re Kellogg Brown & Root, Inc. et al. The Court of Appeals held that attorney-client privilege prevails in confidential communications with corporate counsel at government contractor Kellogg Brown & Root (KBR), overturning a district court decision.

In March, ACC joined the United States Chamber of Commerce, National Association of Manufacturers and Coalition on Government Procurement, among others, in an amicus brief in support of a petition for writ of mandamus in the whistleblower case. ACC urged the Circuit Court to overturn the district court decision ordering disclosure of 89 documents prepared between KBR employees and the company's in-house counsel.

"ACC is thrilled that the DC Circuit rightly affirmed that internal investigations led by in-house counsel maintain attorney-client privilege," said Amar D. Sarwal, ACC vice president and chief legal strategist. "The decision underscores the important role that in-house lawyers play when implementing corporate codes of conduct and regulatory requirements to ensure that their companies remain compliant with the law."

In its decision, the DC Circuit adopted "a significant purpose" test for determining whether the attorney-client privilege applies. According to the Court, if a significant purpose of the internal investigation is to seek legal advice, the communications are protected, even if there were other business or regulatory purposes underlying the investigation.

In its amicus brief, ACC and the coalition argued that the district court should have examined whether seeking legal advice was a primary or significant reason for the communication collected during KBR internal fraud investigations, rather than the sole motivation.

"We are especially pleased to see the Court adopt exactly the right rules on privilege protection, because this issue affects businesses of every size and industry," Sarwal said. "With its decision today, the Court shows strong commitment to attorney-client privilege, the cornerstone of the practice of law."

To read the decision, please visit http://www.acc.com/advocacy/upload/KBRopinion0627141.pdf.

To read the amicus brief filed in March, please visit http://www.acc.com/advocacy/upload/In-re-KBR-031914.pdf.

About ACC: The Association of Corporate Counsel (ACC) is a global bar association that promotes the common professional and business interests of in-house counsel who work for corporations, associations and other private-sector organizations through information, education, networking opportunities and advocacy initiatives. With more than 33,000 members in 85 countries, employed by over 10,000 organizations, ACC connects its members to the people and resources necessary for both personal and professional growth. By in-house counsel, for in-house counsel.® For more information, visit www.acc.com and follow ACC on Twitter: @ACCinhouse.

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